This article is Part Two of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. Read Part One here.
The Supreme Judicial Court’s ruling in Barbuto marks a significant departure from case law arising under the medical marijuana laws of other states, and in particular, the way in which other courts have interpreted conflicting federal law related to the possession, use, cultivation or sale of marijuana.
The Federal Controlled Substances Act (“FFCSA”) prohibits any and all use of marijuana. See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances, which includes all Schedule I drugs). All elements of marijuana are encompassed within the FCSA’s definition of marijuana. See 21 U.S.C. § 802(16) (“The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”). Significantly, the FCSA does not provide an exception for the use of medical marijuana or medical marijuana derivatives. Ergo, the use of medical marijuana and all associated materials, in any form whatsoever, are illegal under federal law. See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances for all Schedule I drugs).
The FCSA’s blanket proscription of marijuana also carries over to federal disability law. The FCSA precludes employees (regardless of whether they are qualifying medical marijuana patients under state law) from commencing discrimination claims under federal law for adverse actions taking by employers as a result of medical marijuana use. See 42 U.S.C. § 12210(a) (2012) (“For purposes of this chapter, the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”); see also 21 U.S.C §§ 802(16), 812(c), 844(a) (establishing illegality of marijuana in any form). If not for this clear federal embargo on such claims, employees would most likely seek relief through the Americans with Disabilities Act (“ADA”). See 42 U.S.C. § 12112(b)(5)(B) (2012) (creating private cause of action arising under federal law for an individual with a disability who is denied “employment opportunities and is an otherwise qualified individual”).
The ADA provides a federal claim for disabled employees who are discriminated against in their place of employment because of a disability. See 42 U.S.C. § 12102 (2012) (defining “disability” as a “physical or mental impairment that substantially limits one or more major life activities …; a record of such an impairment” or “being regarded as having such an impairment”). Despite these broad protections, the ADA unambiguously reads that an “individual with a disability” does not include those “currently engaging in the illegal use of drugs.” 42 U.S.C. § 12210(a). Moreover, the ADA defines the “illegal use of drugs” as “the use of drugs, the possession or distribution of which is unlawful under the [FCSA].” 42 U.S.C. § 12210(d). The ADA and the FCSA therefore preclude employees terminated because of their use of medical prescribed marijuana from bringing a workplace discrimination claim under the ADA. Accordingly, those employees must resort to wrongful termination and discrimination claims under state law.
Federal marijuana policy has also created a difficult grey area under state law for employees terminated or discriminated against due to their status as a qualifying medical marijuana patient. Even in states that have enacted medical marijuana laws to protect the health, safety, and welfare of their citizens, many courts have interpreted federal law to deny employees any legal remedy for adverse employment actions resulting from medical marijuana use. See e.g., James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012) (holding that doctor-supervised marijuana use was federally prohibited use of drugs that was not covered by ADA’s supervised use exception; thus, exception did not protect medical marijuana users who claimed to face discrimination on basis of their marijuana use); Coats v. Dish Network, L.L.C., 303 P.3d 147, 152 (Colo. App. 2013) (holding that state-licensed medical marijuana use is not a “lawful activity” under the Colorado employment discrimination law as a “lawful activity” must be permitted by, and not contrary to, both state and federal law; conversely, an activity that violates federal law but complies with state law cannot be “lawful” under the ordinary meaning of that term); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518, 536 (Or. 2010) (holding that the Oregon Medical Marijuana Act was preempted by the Federal Controlled Substances Act and, therefore, the employee’s use of medical marijuana was illegal and was not entitled to accommodation); Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1230 (D.N.M. 2016), appeal dismissed (Mar. 25, 2016) (holding that Federal Controlled Substances Act preempted interpretation of New Mexico’s Compassionate Use Act (CUA), which authorized use of medical marijuana, and the New Mexico Human Rights Act as requiring employer to accommodate employee’s use of medical marijuana, where CUA provided only limited state law immunity from prosecution for individuals engaged in state law-compliant medical marijuana use, while CSA criminalized marijuana, and affirmatively requiring employer to accommodate employee’s illegal drug would force employers to permit conduct expressly prohibited by CSA); Carlson v. Charter Commc’ns, LLC, No. CV 16-86-H-SEH, 2017 WL 3473316, at *2 (D. Mont. Aug. 11, 2017) (holding that there was clear conflict preemption as between Montana’s Medical Marijuana Act and the Drug-Free Workplace Act, which the defendant employer was required to comply with as a federal government contractor, because the employer could not simultaneously permit marijuana use consistent with Montana’s medical marijuana law and at the same time ensure a drug-free workplace as defined under the DFWA); Haas III et al., Labor and Employment Law 67 Mercer L. Rev. 91, 93 (2015) (“From the few cases decided on this issue around the United States, the prevailing argument seems to be that as long as marijuana is illegal under federal law, employers will not have to accommodate for it, and it can be considered a cause for termination.”).
Most courts have been loath to allow even state law causes of action arising from adverse actions taken as a result of an employee’s use of medical marijuana. See e.g., Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 436-37 (6th Cir. 2012) (holding that the Michigan Medical Marijuana Act does not restrict a private employer’s ability to discipline employees for medical marijuana use and, therefore, the Act could not support a wrongful termination claim); Ross v. RagingWire Telecomms., Inc., 174 P.3d 200, 208 (Cal. 2008) (holding that the California Fair Employment and Housing Act does not require an employer to accommodate an employee who used medical marijuana and that an employee who is terminated for authorized medical marijuana use cannot state a cause of action for termination in violation of public policy); Johnson v. Columbia Falls Aluminum Co. LLC, No. DA 08-0358, 2009 WL 865308, at *4 (Mont. 2009) (holding that an employee who was terminated for use of medical marijuana could not state an express or implied cause of action arising under the Montana’s Medical Marijuana Act); Roe v. TeleTech Customer Care Mgmt., 257 P.3d 586, 594-95 (Wash. 2011) (holding that the Washington State Medical Use of Marijuana Act does not proclaim sufficient public policy to support a cause of action for wrongful termination and that the Act does not regulate the conduct of a private employer or protect employees from discharge for authorized medical marijuana use).
Some courts also have held that the state medical marijuana laws in question do not regulate private employment action. See Swaw v. Safeway, Inc., 2015 WL 7431106, *1 (W.D. Wash. 2015) (“Washington law does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if medical marijuana is being used off site to treat an employee’s disabilities, and the use of marijuana for medical purposes remains unlawful under federal law.”); Stanley v. County of Bernalillo Com’rs, 2015 A.D. Cas. (BNA) 187129, 2015 WL 4997159, *5 (D.N.M. 2015) (collecting cases).
A minority of courts has held that state medical marijuana laws provide employment protection: Maine’s medical marijuana act, for example, “provides for a private right of action for qualifying patients and primary caregivers who have been discriminated against by their employers[.]” Savage v. Maine Pretrial Services, Inc., 58 A.3d 1138, 1143 (Me. 2013). Significantly, Maine’s law does not create a private right of action for employees who apply for licenses to operate medical marijuana businesses.
Decisions in other jurisdictions that have denied a state law cause of action have sometimes relied on distinctions in those states’ laws. For example, the Superior Court’s decision in Barbuto, which was reversed, referenced two of the above-cited cases in other jurisdictions as support for its holding that Chapter 151B of the Massachusetts Medical Marijuana Act (“MMMA”) does not require an employer to accommodate an employee’s use of medical marijuana. See Ross v. RagingWire Telecommc‘ns, 174 P.3d 200 (Cal. 2008); Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). However, the medical marijuana statutes reviewed in Ross and Coats are best characterized as “pure decriminalization” statutes, in contrast to the MMMA, which contains broad provisions that affirmatively protect patients. In Garcia, 154 F. Supp. 3d at 1227-28, the United States District Court for the District of New Mexico recognized the distinction between pure decriminalization statutes and those that provided express or implicit protections to employees by emphasizing that “[w]hile some states, such as Connecticut and Delaware, have included within their medical marijuana acts affirmative requirements mandating that employers accommodate medical marijuana cardholders, New Mexico’s medical marijuana act has no such affirmative language.” However, it is important to note, as stated supra, that the Court also found that such a cause of action was also preempted by the Federal CSA. But see Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-CV-01938(JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017) (stating that Connecticut’s Palliative Use of Marijuana Act (“PUMA”) had an express anti-discrimination provision protecting against employment based discrimination on the basis of the medicinal use of marijuana and that there was no Federal preemption). The Noffsinger decision will be discussed in greater detail in Part 5 of this series.
Unlike Massachusetts’ own decriminalization statute, the MMMA creates a comprehensive regulatory and licensing scheme that controls the sale and possession of marijuana; the necessity of physician recommendation; protocols for testing, and the ability for patients to cultivate. St. 2012, c. 369, § § 1, 3, 8-9, 11 & 13. Significantly, the MMMA provides that patients “shall not be subject to arrest or prosecution, or civil penalty” for the medicinal use of marijuana, and “[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” Id. at § 4 (emphasis added).
By contrast, the operative provision of California’s medical marijuana law that was at issue in Ross reads, in connection with patients, as follows:
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
Cal. Health & Safety Code § 11362.5 This section of the California Code decriminalizes specific conduct for qualifying patients with a recommendation or approval to engage in such conduct by a physician. However, Section 11362.5 lacks a provision that affirmatively protects qualifying medical marijuana patients from the denial of any other rights afforded by state law based on the decriminalized conduct. Thus, while the Ross Court held that Section 11362.5 did not protect medical marijuana patients from workplace discrimination, the Barbuto Court erred in relying on Ross, because the California decriminalization statute is not analogous to the MMMA. The MMMA expressly provides protections to qualifying medical marijuana patients from the denial of any rights or privileges based on activities permitted under the MMMA.
The Superior Court’s reliance on Coats was similarly misplaced, and for essentially the same reason—the text of the relevant Colorado Constitutional Amendment (Article 18, S 14) makes clear that the amendment provides for decriminalization and nothing more. The provisions of the Colorado Constitutional Amendment allowing for the medical use of marijuana state as follows:
(2)(a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary care-giver charged with a violation of the state’s criminal laws related to the patient’s medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:
(I) The patient was previously diagnosed by a physician as having a debilitating medical condition;
(II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and
(III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section.
(b) Effective June 1, 1999, it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.
Colo. Const. art. XVIII, S 14.
Similar to the California statute already discussed, Article 18, Section 14 of the Colorado Constitution lacks a provision protecting patients from the denial of rights or privileges based on medical marijuana use. Article 18, Section 14 affords only an affirmative defense to specific criminal charges, and decriminalizes the medical use of marijuana for registered patients and caregivers. The medical marijuana laws in Ross and Coats are so dissimilar from the MMMA the Superior Court should not have relied on them when interpreting the MMMA.
As will be seen in future installments, while it marked a significant departure from rulings in states west of the Mississippi, Barbuto is part of a trend in which New England courts are recognizing state law employment causes of actions for patient employees claiming employer discrimination as a result of their use of medical marijuana.